Kishore v. Binu N.

2. These two appeals are directed against the judgment and order dated 12.2.2013 passed by the High Court of Kerala dismissing the two writ appeals preferred by the appellants herein challenging the judgment of the Single Judge whereby the writ petition filed by Respondent Nos.[1] to 3 was allowed quashing Notification inviting applications for appointment to the post of Attender/Peon and the appointments made pursuant thereto.

3. The facts of the case lie in a narrow compass.

4. The Akalakunnam Village Service Co-op Bank Ltd. (for the sake of brevity hereinafter referred to as “the Bank”) by Notification dated 6.6.2009 invited applications to fill up the vacant posts of 1 Attender and 3 Peons and to reserve one vacancy of Peon for members belonging to SC/ST. The last date stipulated for submission of applications was 22.6.2009. Pursuant to this, among others, respondent nos.[1] to 3, who are writ petitioner nos.[1] to 3 applied and a written test was held on 15.7.2009 and an interview was also conducted in the afternoon of that day. Page 3

5. In the meanwhile, respondents 1 to 3 (hereinafter referred to as “writ petitioners”) filed writ petition challenging the aforesaid Notification on the ground that notification does not confirm to the Kerala Co-operative Societies Rules (in short, “the Rules”) and the circulars issued under Rule 182(5) thereof. They also alleged in the writ petition that steps are afoot to appoint four persons, namely, Kishore, Jomon K.J., Archana Binoy and Abhilash, who are appellants herein in appeal arising out of SLP(C) No.10809 of 2013 and respondent nos.[6] to 9 in appeal arising out of SLP(C) No.9794 of 2013 [for the sake of brevity, they are hereinafter referred to as “selected candidates”]. The Bank and the selected candidates filed counter affidavit and contested the matter.

6. After hearing parties on either side, the learned Single Judge of the High Court came to the conclusion that the Page 4 Notification and selection process were not issued in accordance with Circulars issued by the Registrar of Cooperative Societies and quashed the aforesaid Notification, selection and appointment of the selected candidates directing the Bank to conduct a fresh selection within six months in the manner directed after inviting applications in accordance with the Circular. Till then, the selected candidates were permitted to work on daily wage basis subject to the condition that their initial appointment of such continuance will not confer on them any preference for appointment.

7. The judgment of the learned Single Judge of the High Court was challenged by the Bank as well as selected candidates by way of two separate writ appeals, challenging maintainability of the writ petition against the appellant Cooperative Society. Appellants contended that the writ petitioners have effective alternative remedy under section Page 5 69 of the Kerala Co-operative Societies Act (in short, “the Act”). They further contended that since the writ petitioners participated in the selection process, they cannot turn round and take the contention that the selection process itself is bad. It has been further contended on behalf of the appellants that the directions in the circular are not mandatory in nature, but are only guidelines and unless the writ petitioners prove prejudice, the High Court should not interfere with the selection process.

8. It has been contended on behalf of the writ petitioners that a writ would lie against a Co-operative Society when the duty owned by it is of a public nature or when there is infringement of any statutory rules by a co-operative society. Their contention is that under Rule 182(5) of the Kerala Cooperative Societies Rules, in respect of societies and posts not covered by Section 80(3)(A) and Section 80B of the Act, the appointments shall be made by the committee after Page 6 conducting the written examination and interview as per the guideline issued by the Registrar. The Government and the 182(5) regarding the conduct of examination and interview to the post of Attender/Peon. Ext. P[1] Notification issued by the Bank is clearly in violation of the guidelines issued as per the circulars relied upon and there being statutory violation, the writ petition would certainly lie against the Bank. It has also been submitted on behalf of the writ petitioners that the written test must have been conducted by an outside agency, whereas, in the present case, the committee authorized the President to find out a suitable person to conduct the written test. With regard to alternative remedy, it has been contended that the writ petitioners do not have any alternative remedy available insofar as Section 69 is not applicable to them. It has been further contended by them that the writ petition was filed even before the conduct of the written test and immediately after publication of the Notification. Page 7

9. Considering the rival contentions in detail and concerned provisions of the Act and Kerala Co-operative Societies Rules, the Division Bench of the High Court did not find any merit in the writ appeals and dismissed both the writ appeals preferred by the appellants herein. Hence, the present appeals by special leave.

10. We have heard learned counsel for the parties appearing on either side and have gone through the impugned order passed by the Division Bench of the High Court.

11. We do not find any reason to interfere with the findings of the High Court. Rule 182(5) of the Rules stipulates that “In respect of societies and posts not covered by section 80(3)(A) and Section 80B of the Act, the appointments shall be made by the Committee after Page 8 conducting the written examination and interview as per the guidelines issued by the Registrar”. The circulars issued by the Government and Registrar of the Co-operative Societies have statutory force and specifically stipulate the procedure for conducting the selection to the post of sub staff.

12. We would also like to quote Section 69 of the Act hereunder to analyze contention of alternate remedy: